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Why the Home Secretary’s attack on human rights judges is like a Bakewell tart

The Home Secretary has launched a major attack on immigration judges in today’s Mail on Sunday, in language which even the Mail says is “highly emotive”. She finds it “depressing” that judges are consistently refusing to allow deportation of foreign criminals in “defiance of Parliament’s wishes”.

This is a very angry editorial. The Mail and the Telegraph have been regularly baiting immigration judges in the past year (see my posts here and here), and Immigration/Upper Tribunal judges have attracted particular ire. The articles have often been inaccurate and misleading. It is a shame to see the Home Secretary stoking the public outrage with this article, much of which amounts to populist posturing.

Lip service is paid to the importance of the “power of Ministers” being “reviewed and restrained by independent judges”. But the theme is really that in the case of foreign deportations, judges should not be independent, but rather should bow to the will of Parliament.

Strictly, the Home Secretary is right that Parliament rules supreme. The problem is that she has ignored the absolutely central point, that it was Parliament which gave judges the job of interpreting the European Convention on Human Rights, including the dastardly Article 8 (the right to family and private life), when it enacted the Human Rights Act 1998.

It isn’t always easy to understand the way it all fits together, so let me bring in an analogy (warning: this may make you hungry). In the BBC’s Great British Bake Off, each week contestants bake cakes, tarts and other delicious treats. The are competing against each other, so the BBC has appointed two expert bakers to judge the contest.

Similarly, Parliament has, through the Human Rights Act, given judges the job of deciding whether the cake is a good cake, that is in saying whether the laws it makes comply with human rights law (as well as, more narrowly, individual decisions of public authorities do so).

Now, imagine a BBC executive decided to compete in the Great British Bake Off, and, having made what they considered to be the best Bakewell tart in history, finds the judges are unimpressed and is knocked out of the competition. They then write an angry editorial complaining that the Bake Off judges had defied the authority of the BBC, which after all employed them and set the rules in the first place.

Obviously, the BBC exec would be missing the point. And to an extent, so is the Home Secretary. It was Parliament which chose to incorporate most of the ECHR into UK law, that is to bind its own hands and give judges the task of deciding whether a law complies with human rights. So until the Human Rights Act is amended or repealed (the latter is Theresa May’s stated aim), Parliament can tell judges how to interpret human rights law, but the final say remains with the judges. The Home Secretary is now threatening to bring in primary legislation meaning, she says, that

it [will] surely [be] inconceivable that judges in this country will maintain that it is they, rather than Parliament, who are entitled to decide how to balance the foreigner’s right to family life against our nation’s right to protect itself

But unless that legislation amended the Human Rights Act, this is simply wishful thinking, as was the original change in the immigration rules which even Parliament’s Legislative Scrutiny Committee doubted would make any difference (hat tip to Free Movement). Rather, it is precisely the judges whose task it will be to decide how to balance “the foreigner’s” (I know, but it is the Mail) right. Because Parliament gave them the task, and it is highly unlikely that in this Parliament that task will be taken away from them.

The deportation of criminals is is a difficult, emotive issue, and it is after all the Home Secretary’s job to look tough on crime. I have no doubt that the Home Secretary and her advisors understand full well how the system works and much of this is posturing for a certain audience. It is certainly not meant for lawyers. But as I have said before, it is bad when ministers seek to corrode the independence of judges through these kinds of attacks. As Lord Woolf, former Lord Chief Justice has said, it undermines the rule of law.

It is also odd that although the Home Secretary makes much of her belief that the higher court judges will agree with her (the current attack is on the Upper Tribunal), she has already decided on primary legislation before finding out how these arguments will fare on appeal to the higher courts. Surely it is premature to blame the judiciary before the higher appeal courts have spoken on the issue. And if the decisions are not being appealed, the intransigence argument rather falls away.

I will end with this. The Home Secretary blames immigration judges for “damaging the notion of human rights”, meaning that

in the popular imagination, ‘human rights’ are wrongly, but perhaps understandably, becoming synonymous with legal dodges that allow criminals to escape proper punishment and to continue to prey on the public

The detail of the proposed legislation is yet to surface, and once the rhetoric clears away more sensible proposals may emerge which may make a real difference to foreign criminal deportations. Or, perhaps this is simply part of a long-term strategy to build up public support for repeal of the Human Rights Act by picking public fights with judges who cannot fight back. I expect the second prediction is more likely. Because the first seems, legally speaking, rather half-baked.

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10 comments

[…] Act runs into trouble because, as Adam Wagner (the editor of the excellent UK Human Rights Blog) notes, the Home Secretary’s intention this time round is to limit judicial independence by making […]

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Amy Williamssays:

Thanks for this Adam.

One concern, your paragraph about judges having the final say seems to overlook the section 3/4 mechanism in the HRA.

I refer to the following:

“So until the Human Rights Act is amended or repealed (the latter is Theresa May’s stated aim) Parliament can tell judges how to interpret human rights law, but the final say remains with the judges.”

I cannot agree. Any plainly worded statute that clearly violates Article 8 would compel the judges to issue a Declaration of Incompatibility, which, as we know, has no legal effect (other than to prepare the ground for a s10 remedial order if the government is so inclined). This very mechanism distinguishes the HRA from many other Bills of Rights around the world, which equip the judges with a so-called ‘strike down’ power.

The desirability of such a statute is another question, but it is misleading to suggest that under the scheme of the HRA, parliament is powerless to change judicial decisions on deportation.

Thanks Amy – you are right to clarify this, although it is also correct that in interpreting the Convention, the final say is with the judges. Only Parliament gets to make law, and it can make new law following a declaration of incompatibility. But even then, it is still for judges to interpret that new law and say whether it is compatible with human rights law.

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Amy Williamssays:

Agreed. I was concerned to emphasise the practical impact of that. The judges may say that the Act is incompatible with human rights law, but if the incompatibility is such that a section 3 interpretation is not “possible”, the deportation (in this context) may go ahead regardless, accompanied by a Declaration of Incompatibility (Strasbourg challenge notwithstanding).

It is essential to remember that judges at tribunals are concerned with applying the law to the facts of the individual case. If there is to be ‘justice’ then the law must leave discretion to the tribunals.

One of the key reasons for the European Convention on Human Rights has always been to protect the citizen from overbearing governments which, in my view, most Home Secretaries exemplify.

She said something worse in the article that is not quoted here. “…some of our judges appear to have got it into their heads that Article Eight of the European Convention on Human Rights, the ‘right to family life’, is an absolute, unqualified right.”

This is utter BS and extremely insulting to the judiciary. Every single deportation case (indeed every single case that hinges on HRA) involves balancing competing rights and applying proportionality. Sometimes the Home Office will lose. This is as it should be. I can’t believe the arrogance of this woman. She talk about “foreign criminals” being loose to cause harm. Well then try them in a court of law instead of insisting on secrecy. That’s the real issue.

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James Lawsonsays:

Political posturing of this sort is nothing more than an attempt to achieve on a domestic level what the government has been successful in accomplishing at a wider European Level for the last two years.

The Government has learned that it is better able to achieve its political objectives by generating and then operating within a climate of contrived hostility. Thus, for example, when the extent of the veto was drastically reduced under the TFEU in favour of qualified majority voting in the Council of Ministers, the previous Prime Minister threatened the use of a national referendum to wrest concessions, without a thought to the political fallout his gesture would cause at home among a criminally misinformed electorate.

The same exercise was conducted in the Council of Europe when it threatened a withdrawal from the Convention and used its presidency in an attempt, inter alia to alter the status of the jurisprudence of the ECtHR and ‘upped the anti’ at home by suggesting that a ‘British Bill of Rights’ was perhaps a suitable alternative. It is no coincidence, indeed, it was remarked upon on this very blog that the ECtHR was effective ‘bullied’ into returning judgments more favourable to the United Kingdom Government than would have otherwise have been delivered.

Theresa May is simply another of a long line of Home Secretaries who have abused the constitutional Convention against undermining the rule of law by direct attacks on the judiciary judiciary who, as she well knows, cannot answer back. Her approach to article 8 was simply to generate a Parliamentary debate generating more heat than light which she thought would be sufficiently intimidating to the judiciary to alter their approach to the interpretation and application of its provisions without the necessity of risking a vote in Parliament affecting the substantive law which she also knows is the only constitutionally recognised means by which the court will undertake to apply Parliament’s intention.

To expect the judiciary to fashion the law on the back of a mere debate with or without a vote on the substantive law is wishful thinking and indicative of the same cavalier approach to constitutional norms displayed by the previous government.

Theresa May’s article in the Press adopts the same approach as her illiberal predecessors. It is a deliberate attempt to generate consent for government policy by creating a climate of public hostility towards the judiciary who have loyally applied the law laid down by Parliament. The manner and tone of her newspaper article is rather closer to ‘inciting a mob’ than it is to engaging an educated and intelligent electorate. It is grossly insulting and does not befit a Minister of the Crown.

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Chrissays:

The simple answer is they are down in the polls & need to win elections therefore pander to the lowest common denominator is the answer………. simples

We await the detail! The role of the HRA machinery is interesting here:

– Theresa May probably wouldn’t be able to sign off the declaration of compatibility as per section 19.

– The changes would invite a declaration of incompatibility, as per section 4.

– The foreign national prisoners would still be able to apply to the ECtHR – which is time consuming and subverts the original intention of the HRA.

My gripe is the misplaced ire – Article 8 is defined at least in part by the ECtHR in Strasbourg. The UK cannot seek to amend the meaning or interpretation of Article 8 because we do not define it. Theresa May’s tanks are on the wrong lawn…which is awkward.

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Disclaimer: This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.